"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Wednesday, April 9, 2014

Head of the Indiana Disciplinary Commission Retaliates Against Yours Truly For Helping Person Blow the Whistle on Marion County Judge

Saturday afternoon, I received a knock at my door. It was my postal
carrier. He come bearing a new grievance filed against me by Executive
Secretary Michael Witte of the Indiana Supreme Court Disciplinary
Commission. I wasn't surprised. I know how the Disciplinary Commission
has operated under former Executive Secretary Donald Lundberg and now
Witte. The Commission has long ceded as its primary mission enforcing
the rules to protect the public from unethical attorneys. Rather, under
Lundberg and Witte the Commission has become a tool to go after critics
and other attorneys the Commission doesn't like. They have been
relentless in that goal. When an attorney who fights charges escapes
the disciplinary process with his license intact, other charges almost
inevitably follow. The Commission will continue until it gets
the attorney's license or the attorney gives up and leaves the practice
of law.

Michael Witte, Executive Secretary
Indiana Disciplinary Commission

Witte's grievance this time is that I
wrote about my interaction with Shirley Justice, the young mother who
was shot 14 times outside a day care facility on the northwest side of
Indianapolis. Ms. Justice had contacted me about filing a "lazy judge"
praecipe against Judge Patrick McCarty who had pending before him a
petition for modification of child custody that was over 90 days. She
pleaded with me to represent her. I told her I couldn't, but discussed
the lazy judge process with her, reviewed the docket, and reviewed the
lazy judge praecipe she drafted pro se.

She by fax
tried to file the lazy judge praecipe Monday morning. She then
contacted me upset, reporting to me that talked to a clerk in the office
and that even though she had faxed it nearly the first thing that
morning, an order on her case had been entered ahead of the motion. Her
lazy judge praecipe was deemed moot. As I indicated to her, that's not
the first time I had heard it alleged that Judge McCarty will execute
an order for filing ahead of a lazy judge praecipe, thereby mooting the
praecipe. Judges hate lazy judge praecipes because they trigger a
disciplinary type process in which the judge has to explain to the
Supreme Court why a timely ruling was not made.

What to
do? I reported what happened in Judge McCarty's court to counsel for
the Judicial Qualifications Commission and the State Court
Administrator. Apparently they didn't buy it either that the order was
done before the praecipe. The Supreme Court ordered that the praecipe
be shown as having been filed first. The case was removed from Justice
McCarty's court.

I didn't plan on writing about what
happened until Ms. Justice, while outside a day care center dropping off
her child, was shot 14 times, allegedly by her ex-husband.

In the grievance, Witte fails to identify any disciplinary rule I violated but suggests from the my article in which I reported what Ms. Justice said and her allegations regarding Judge McCarty improperly revealed confidential information from my discussion with the potential client.

It
is not clear by what authority Disciplinary Commission Executive
Secretary Michael Witte thinks he has to assert a potential client's
confidentiality rights. It is not clear under by what authority that
Witte believes that an attorney can be sanctioned for revealing
information that a client had no problem revealing.

I
have since talked to Ms. Justice. I confirmed that Ms. Justice had no
problem with my including the information of our discussions in the
article and, in fact, approves of what I
wrote. She has also talked to the media. She wants her story
out, including what she believes Judge McCarty did to her.

Before
filing a grievance asserting that I had violated Ms. Justice's
confidentiality rights, neither Mr. Witte nor anyone at the Commission
bothered to talk to Ms. Justice. This is consistent with the fact
that the Commission made no effort to talk to me or any of my witnesses
before filing charges based on my sending emails criticizing a Hendricks
County judge and my writing a letter educating judges about how civil
forfeiture proceeds were to be divided.

One thing is
clear though. What Witte did by filing that new grievance against me is
nothing more brute retaliation for my criticizing him and the
Commission and, in particular, my doing my job of reporting what
happened to Ms. Justice in Judge McCarty's court. I tried to blow the
whistle on possible judicial misconduct and Witte doesn't like that.
It's exactly because of Witte's approach that we have Indiana attorneys
remaining silent when faced with judicial misconduct.

I
am undoubtedly the biggest public critic of Witte and the Commission.
Time after time I have seen the Commission fail to go after unethical
attorneys who are doing great harm to the public while instead devoting
enormous resources to going after attorneys who allegedly commit petty
offenses, but have instead committed the greater offense of offending
the Commission. In that regard, I have no doubt that Witte will
continue to file things against me until he assures I no longer have an
Indiana law license. He has devoted enormous Commission resources to
that goal and will not quit until he is successful.

The
Disciplinary Commission has been allowed to operate with very little
oversight and no transparency for years. It is axiomatic that any
government agency that is allowed to operate under such circumstances
will at best end up corrupt and at worst will end up with authorities in
that agency abusing their power. Clearly Witte is not above abusing
his authority to target critics with the enormous power of the
Disciplinary Commission, a fact I've personally experienced multiple
times.

Witte, who is
actually an appointment by former Chief Justice Randall Shepard, clearly
lacks the temperament and judgment to sit as Executive Secretary of the
Disciplinary Commission. He needs to be fired and the Commission's
activities thoroughly investigated. Every attorney I know is terrified
of speaking out about problems with the Disciplinary Commission because
of fear of retaliation. Nobody I have ever met though thinks the
Commission is doing a good job or that its processes shouldn't be
thoroughly investigated and reforms of the disciplinary process
instituted. The time for that is long past due.

2 comments:

I simply wanted to appreciate you yet again. I am not sure what I would have used without the type of information shared by you directly on such a subject. This was a very alarming setting in my view, however , spending time with a skilled mode you handled that made me to cry for fulfillment. I am just happy for this information and thus hope you are aware of a great job you are doing teaching most people using a blog. I know that you’ve never got to know all of us.

I wish there were more "professionals" in Indiana ... instead of the system that you outline above (and too many of us experience in vivo). I've noticed that since the reporting immediately following the shooting of Ms. Justice, there is no follow-up, nor is there anything regarding the whole situation from those agencies which purport to advocate against domestic violence and the like. What a shame that Indiana spent so much (time and money) steamrolling you; the whole incident with Ms. Justice could have galvanized so much positive change, especially in regard to the "professional" legal community and affiliates ... instead we get "business as usual" sans someone ... you, who actually HELPED someone. Thanks for your efforts; they are appreciated by some in Indiana.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.